Articles/Newsletters

Copying of school photos leaves industry shuddering

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by Samuel Lewis

Photographers and their professional associations are up in arms over a recent article suggesting parents might be able to save money by scanning and digitally reproducing copies of copyrighted school photographs without paying the photographer or studio that created the images.

It started innocently enough. In early November, SmartMoney Magazine’s Internet site, SmartMoney.com, published an article titled “Top Five Annoying School Costs.” The article, by Stacey Bradford, associate editor for SmartMoney, identified the cost of school photographs among the top five annoying school expenses parents will encounter.

As a money-saving tip, Bradford suggested that parents purchase the smallest possible school photo package. But Bradford went a step further and suggested that parents who are concerned that they won’t have an extra print for grandma should “consider scanning your copy.”

The problem with Bradford’s suggestion is that the owner of a copy of a copyrighted work does not have the right to make copies. Under federal copyright law, only the copyright owner has the legal right to make copies.

Contrary to the common misconception, the lack of profit motive — such as sharing a copy with grandma — does not make the act of scanning and printing or emailing a copy of a copyrighted photograph any less illegal. Even in the absence of a copyright notice, making a copy of a copyrighted photograph without authorization from the photographer constitutes a violation of federal law.

Bradford’s article did not receive much attention until it appeared on America Online. AOL receives news feeds from various sources including SmartMoney.com. Many photographic professionals viewed Bradford’s suggestion as being tantamount to encouraging parents to infringe the photographer’s copyrights and thus, violate copyright law — all for the sake of saving a few dollars.

Bradford’s suggestion quickly drew the ire of photographers and related associations. “Professionals around the country are incensed,” said John Mark, president of the Professional School Photographers Association International, a section of the Photo Marketing Association International (PMA).

According to Mark, who runs a photo studio in Spokane, most school photographers include copyright statements on school photographs and/or the related packaging to make it clear to parents that the photographs are copyrighted. Some photographers even embed watermarks in their prints to prevent the illegal copying of their photographs.

After receiving a flood of complaints regarding Bradford’s article, AOL removed the article from its web site.

Steven Noble, who handles regulatory activities for the PMA, said he contacted Bradford regarding her article. After pointing out that her recommendation — scanning and reprinting images without permission — is a violation of copyright law, Noble asked that SmartMoney.com print a retraction and/or correction informing SmartMoney’s readers that scanning and reprinting a copyrighted image is illegal and should not be done without the permission of the owner of the work.

On behalf of the PMA, whose membership consists of photographers and a variety of retailers who provide photographic printing services to consumers, Noble offered to work with Bradford on a factual and balanced article on the topic.

Judging from responses that others received from SmartMoney, it is unlikely that Bradford will take the PMA up on its offer. Several individuals who attempted to contact Bradford via email received a succinct response: “We stand by the story. Thanks for your interest.”

When SmartMoney.com’s editor, Ray Hennessey, was questioned regarding Bradford’s suggestion, he maintained the position that SmartMoney stands by the article. When I asked Hennessey whether SmartMoney condones copyright infringement, Hennessey responded via e-mail: “We never said that, nor do we believe it. Our story speaks for itself, and we’re comfortable with what we’ve written.”

Bradford’s suggestion in her article stands in sharp contrast to SmartMoney.com’s position regarding reproduction of its own content.

At the end of her article, SmartMoney.com has a link for readers to obtain information for licensing the use of the article. SmartMoney.com also has a set of “terms and conditions” for the use of the site that extensively discusses SmartMoney’s copyrights. The terms and conditions warns readers that they “may not post any content from this SmartMoney Web Site to newsgroups, mail lists, electronic bulletin boards or other web sites, without the prior written consent of SmartMoney.”

No standard

Part of the outcry triggered by Bradford’s imprudent suggestion relates to industry trends and the problems with which professional photographers and retailers currently are wrestling.

For example, while there were only a handful of school photographers who provided images to parents in electronic form a few years ago, increasing numbers of photographers are providing this option with their packages of prints. Coupled with the advent of selfprinting kiosks and online photo printing services, the potential for illegal copying is great.

Even where these packages are not offered, suggestions like Bradford’s reflect the reality that many parents already possess the resources necessary to make illegal copies of copyrighted photographs. Anyone with a computer, scanner and photo printer has all the resources needed to make illegal copies of copyrighted photographs.

While retailers have attempted to prevent consumers from using their photo printing services for the purpose of infringing copyrights, there still is no standard way to identify copyrighted images. In the absence of a standard, many retailers are left in the unenviable position of having to evaluate images individually and make a judgment call as to whether the photograph is copyrighted, based upon the perceived quality of the photograph.

Such an approach is hardly foolproof, and skilled amateur photographers have found themselves unable to order prints because their photographs look professional. The PMA is currently exploring means of identifying images that will permit professional photographers to indicate that the photograph is copyrighted, and to permit retailers to easily identify copyrighted works without the current guesswork.

In the meantime, the PMA has recommended that school photographs delivered to parents in electronic form, such as on CD-ROM, be accompanied by terms of use establishing what may and may not be done with the digital images.

Embedding copyright notices

Metadata may provide a solution for photographers and retailers alike. One of the more common forms of metadata associated with digital photographs is the exchangeable image file format, or EXIF. EXIF metadata are commonly used by digital cameras to store information about the photograph, how it was taken, the date and time it was taken, and a host of other information.

Other forms of metadata include IPTC Headers — established by the International Press Telecommunications Counsel, a Windsor, UK-based consortium of news agencies (www.iptc.org) — and the Extensible Metadata Platform (XMP) introduced by Adobe. Each of these forms of metadata allow copyright notices and other information to be stored with a digital image. Ultimately, a standard for identifying copyrighted images may develop out of one or more of these metadata forms.

Once a standard is established, photographers will be able to include a copyright notice and the software running photo printing kiosks and used by various online services will be able to automatically detect copyrighted images and thus, prevent infringement.

Until a standard evolves for protecting digital photographs, photographers and retailers will have to continue to educate consumers in an effort to prevent consumers from infringing copyrights simply because it is easy to do.

Unfortunately, articles like Bradford’s make educating the public regarding the importance of respecting copyrights all the more difficult.

Samuel Lewis is a partner at Feldman Gale in Miami, where he practices computer/Internet Law and intellectual property law. He can be reached via e-mail at slewis@feldmangale.com.